Private Law Theory

Introduction:

… In this text, I have three goals. The first is to explore some of the characteristics of the traditional Western epistemology of private law, in order to understand its default position of respect for elaborated doctrine. This effort, which I will undertake in Part I, will allow me to highlight in Part II the differences between the traditional epistemology and other approaches, including those that arose following the downgrading of doctrine in the United States.

The second goal, which will be the preoccupation of Part III, will be to assess the approach in R3RUE to the important topic of constructive trusts. My argument will be that in this field, R3RUE is ambivalent. It combines traditional epistemology with, in some respects, the law-skeptical approach that arose in the wake of American legal realism. I will argue that the attempt to draw on these incongruent epistemologies – these different ways of knowing what the law is – leads to tension and inconsistency in the positions taken in R3RUE.

The third goal, which I will address in my Conclusion, is to evaluate whether and to what extent this matters. Is there any particular reason why we should adopt a single way of knowing what the law is?

Lionel Smith, ‘Legal Epistemology In The Restatement (Third) Of Restitution And Unjust Enrichment’. Boston University Law Review, 92 BUL Rev 899, May, 2012.

First posted 2012-07-06 06:05:58